EXHIBIT 10.1
FIFTH AMENDMENT TO
REVOLVING CREDIT AGREEMENT
This FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT dated as of
December 27, 2005 (the "Fifth Amendment"), is entered into by and among
INTERSTATE BAKERIES CORPORATION, a Delaware corporation ("Parent Borrower"), a
debtor and debtor-in-possession in a case pending under Chapter 11 of the
Bankruptcy Code, each of the direct and indirect subsidiaries of the Parent
Borrower party to the Credit Agreement (as defined below) (each individually a
"Subsidiary Borrower" and collectively the "Subsidiary Borrowers"; and
together with the Parent Borrower, the "Borrowers"), each of which is a debtor
and debtor-in-possession in a case pending under Chapter 11 of the Bankruptcy
Code, JPMORGAN CHASE BANK, N.A., a national banking association (formerly
known as JPMorgan Chase Bank) ("JPMCB"), and each of the other commercial
banks, finance companies, insurance companies or other financial institutions
or funds from time to time party to the Credit Agreement (together with JPMCB,
the "Lenders"), JPMORGAN CHASE BANK, N.A., a national banking association
(formerly known as JPMorgan Chase Bank), as administrative agent (the
"Administrative Agent") for the Lenders, and JPMORGAN CHASE BANK, N.A., a
national banking association (formerly known as JPMorgan Chase Bank), as
collateral agent (the "Collateral Agent") for the Lenders.
WITNESSETH:
WHEREAS, the Borrowers, the Lenders, the Administrative Agent and the
Collateral Agent are parties to that certain Revolving Credit Agreement dated
as of September 23, 2004, as amended by that certain First Amendment to
Revolving Credit Agreement dated as of November 1, 2004, by that certain
Second Amendment to Revolving Credit Agreement dated as of January 20, 2005,
by that certain Third Amendment and Waiver to Revolving Credit Agreement dated
as of May 26, 2005 and by that certain Fourth Amendment and Waiver to
Revolving Credit Agreement dated as of November 30, 2005, pursuant to which
the Lenders have made available to the Borrowers a revolving credit and letter
of credit facility in an aggregate principal amount not to exceed $200,000,000
(as so amended, the "Credit Agreement"); and
WHEREAS, the Borrowers and the Lenders desire to amend and supplement
the Credit Agreement to reflect certain modifications to the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Definitions. Capitalized terms used and not otherwise
defined in this Fifth Amendment are used as defined in the Credit Agreement.
Section 2. Amendment to Credit Agreement. Subject to the conditions
set forth in Section 3 hereof, the Credit Agreement is hereby amended as
follows:
2.1 Section 1.1 of the Agreement is hereby amended by adding the
following defined terms in proper alphabetical order:
"ABA Pension Plan" shall mean the American Bakers Association
Retirement Plan, a defined benefit pension plan established in 1961
to provide pension benefits to certain employees of several unrelated
companies in the baking industry, including, without limitation, the
Borrowers.
"Net Total Usage" shall have the meaning set forth in Section
6.5.
"Suspension Period" shall have the meaning set forth in Section
6.5.
2.2 Section 3.7(b) of the Agreement is hereby amended (A) by
inserting "(i)" immediately after the word "than" and (B) by
inserting the phrase, "and (ii) solely with respect to the ABA
Pension Plan" immediately after the word "Commission", which
immediately precedes the period.
2.3 Section 3.15 of the Agreement is hereby amended as follows:
(a) subsection 3.15(a) is hereby amended by inserting
the phrase, "(other than, in each case, solely with respect
to the ABA Pension Plan)" immediately after the word
"perform"; and
(b) subsection 3.15(b) is hereby amended in its
entirety to read as follows: "(b) No Termination Event
(excluding any such event attributable solely with respect
to the ABA Pension Plan) has occurred which has resulted, or
is reasonably likely to result, in any material liability to
the PBGC or to any other Person."
2.4 Section 5.9 of the Agreement is hereby amended inserting the
phrase, "(other than any non-compliance solely with respect to the
ABA Pension Plan)" immediately after the word "Effect".
2.5 Section 6.5 of the Credit Agreement is hereby amended in its
entirety to read as follows:
SECTION 6.5 EBITDA. As of the end of each fiscal period of the
Borrowers, commencing with the fiscal monthly period ending November
12, 2005, the Borrowers will not permit cumulative Consolidated
EBITDA for the period commencing on May 29, 2005 (being the first day
of the 2006 fiscal year of the Borrowers) and ending in each case on
the last day of the fiscal period listed below to be less than the
respective amounts specified opposite such fiscal period:
Cumulative Consolidated
EBITDA
Fiscal Period Ending (millions)
-------------------- ----------
November 12, 2005 $15.5
December 10, 2005 2.5
January 7, 2006 (12.5)
February 4, 2006 (22.5)
March 4, 2006 (28.5)
April 1, 2006 (26.5)
April 29, 2006 (17.5)
June 3, 2006 2.5
July 1, 2006 12.5
July 29, 2006 23.5
August 26, 2006 35.5
September 23, 2006 46.5
Commencing with the fiscal period ending December 10, 2005 and ending
with the fiscal period ending June 3, 2006 (subject to early
termination as set forth below, the "Suspension Period"), the
Borrowers shall not be required to comply with the foregoing covenant
regarding cumulative Consolidated EBITDA, as calculated as of the end
of each such fiscal period, until such time as the difference between
the (i) then Total Usage, and (ii) the aggregate amount of cash then
on deposit in the Letter of Credit Account ("Net Total Usage"),
exceeds $50,000,000. Notwithstanding the foregoing, however, and
further to the limitations on availability set forth in Section 2.2,
Net Total Usage may not exceed $50,000,000 unless the Borrowers'
cumulative Consolidated EBITDA as of the end of the most recently
ended fiscal period for which the Borrowers were required to have
delivered monthly financial statements to the Administrative Agent
pursuant to Section 5.1(d) equals or exceeds the amount set forth
above opposite such fiscal period. From and after such date as Net
Total Usage exceeds $50,000,000, the Suspension Period shall
terminate and the Borrowers shall be obligated to comply with the
foregoing covenant, both for the then current fiscal period and for
all fiscal periods with respect to which monthly financial statements
are delivered to the Administrative Agent on or after such date
pursuant to Section 5.1(d). In the event Net Total Usage does not
exceed $50,000,000 at any time during the Suspension Period, the
Suspension Period shall terminate as of the first day of the fiscal
period ending July 1, 2006 such that the Borrowers shall be required
to comply with the foregoing covenant with respect to the calculation
of cumulative Consolidated EBITDA as of the end of the fiscal periods
ending July 1, 2006, July 29, 2006, August 26, 2006 and September 23,
2006. All compliance certificates delivered by the Borrowers pursuant
to Section 5.1(c) shall reflect the calculation of cumulative
Consolidated EBITDA and shall also reflect the calculation of Net
Total Usage, but need not demonstrate compliance with the cumulative
Consolidated EBITDA amounts set forth above during the Suspension
Period.
2.6 Section 7.1(n) of the Agreement is hereby amended inserting the
phrase, "(other than as a result of or solely with respect to the ABA Pension
Plan, to the extent the Insufficiency of the ABA Pension Plan does not exceed
$63,000,000)" immediately after the initial usage of the word "Event", which
immediately precedes the word "described".
2.7 Section 7.1(q) of the Agreement is hereby amended (A) by
inserting "(i)" immediately after the word "than" and (B) by inserting the
phrase, "and (ii) solely as a result of or with respect to the ABA Pension
Plan to the extent that any special assessments for such accrued and unpaid
contributions do not exceed $32,000,000" immediately after the word "Date",
which immediately precedes the close parenthetical.
Section 3. Effectiveness. The effectiveness of this Fifth Amendment
is conditioned upon: (i) the Administrative Agent's receipt of executed
counterparts of this Fifth Amendment which, when taken together, bear the
signatures of the Borrowers and the Required Lenders (or, in the case of any
party as to which an executed counterpart shall not have been received, the
Administrative Agent shall have received written confirmation from such party
of execution of a counterpart hereof by such party); and (ii) the Borrowers'
payment of (A) an amendment fee to the Administrative Agent for the respective
accounts of the Lenders voting in favor of this Fifth Amendment in the amount
of twenty-five (25) basis points of such Lenders' Commitments, and (B) any
unpaid balance of the fees and expenses due and payable by the Borrowers
pursuant to the Credit Agreement. The amendments contemplated by this Fifth
Amendment shall be effective (x) solely with respect to the amendments related
to Section 6.5, as of November 12, 2005 upon the satisfaction of the foregoing
conditions, and (y) with respect to all other amendments set forth above, on
the first Business Day on which the foregoing conditions are fully satisfied.
Section 4. Representations and Warranties. Each Borrower represents
and warrants to the Lenders that:
4.1 After giving effect to the amendment contained herein and taking
into account all prior written waivers and amendments in respect of the Credit
Agreement, the representations and warranties of the Borrowers contained in
Section 3 of the Credit Agreement are true and correct in all material
respects on and as of the date hereof as if such representations and
warranties had been made on and as of the date hereof (except to the extent
that any such representations and warranties specifically relate to an earlier
date); and
4.2 After giving effect to the amendment contained herein and taking
into account all prior written waivers and amendments in respect of the Credit
Agreement, (i) each Borrower is in compliance with all the terms and
provisions set forth in the Credit Agreement, and (ii) no Event of Default has
occurred and is continuing or would result from the execution, delivery and
performance of this Fifth Amendment.
Section 5. Choice of Law. THIS FIFTH AMENDMENT SHALL IN ALL RESPECTS
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE
AND THE BANKRUPTCY CODE.
Section 6. Full Force and Effect. Except as specifically amended or
waived hereby, all of the terms and conditions of the Credit Agreement shall
remain in full force and effect, and the same are hereby ratified and
confirmed. No reference to this Fifth Amendment need be made in any instrument
or document at any time referring to the Credit Agreement, and a reference to
the Credit Agreement in any such instrument or document shall be deemed a
reference to the Credit Agreement as amended hereby.
Section 7. Counterparts. This Fifth Amendment may be executed in any
number of counterparts, each of which shall constitute an original, but all of
which taken together shall constitute one and the same agreement.
Section 8. Headings. Section headings used herein are for convenience
only and are not to affect the construction of or be taken into consideration
in interpreting this Fifth Amendment.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
WHEREOF, the parties hereto have caused this Fifth Amendment to be duly
executed as of the day and the year first written.
BORROWERS:
INTERSTATE BAKERIES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
ARMOUR AND MAIN REDEVELOPMENT CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Director
XXXXX'X INN QUALITY BAKED GOODS, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Director
IBC SALES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
IBC SERVICES, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
IBC TRUCKING, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
INTERSTATE BRANDS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
NEW ENGLAND BAKERY DISTRIBUTORS, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Director
LENDERS:
JPMORGAN CHASE BANK, N.A.
Individually and as Administrative Agent
and Collateral Agent
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
SANKATY CREDIT OPPORTUNITIES, II, L.P.
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
PROSPECT HARBOR CREDIT PARTNERS, LP
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
PB CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: AVP
NATEXIS BANQUE POPULAIRES
By: /s/ Xxxxxx Xxxx
---------------------------
Name: Xxxxxx Xxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxx
------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
ING SENIOR INCOME FUND
By: ING Investment Management Co. as its
Investment manager
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
ING PRIME RATE TRUST
By: ING Investment Management Co. as its
Investment manager
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
HIGHLAND FLOATING RATE ADVANTAGE FUND
By: /s/ Xxx Xxxxxxxxx
------------------------------------------
Name: Xxx Xxxxxxxxx
Title: Senior Vice President
HIGHLAND FLOATING RATE LLC
By: /s/ Xxx Xxxxxxxxx
------------------------------------------
Name: Xxx Xxxxxxxxx
Title: Senior Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research as
Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND
By: Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXX & CO
By: Boston Management and Research as
Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxx X. Xxxx
------------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
XXXX & XXXXXXX XXXXX FOUNDATION
By: Babson Capital Management LLC as
Investment Advisor
By: /s/ Xxxx Xxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxx Xxxxxxx
MASSACHUSETTS MUTUTAL LIFE INSURANCE COMPANY
By: Babson Capital Management LLC as
Investment Advisor
By: /s/ Xxxx Xxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxx Xxxxxxx
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Xxx X. Xxxxxxx
------------------------------------------
Name: Xxx X. Xxxxxxx
Title: Managing Director
